816 F2d 681 Owens v. Schwanke K

816 F.2d 681

Orbain OWENS, Plaintiff-Appellant,
v.
Sandra SCHWANKE, Penny Williams and Retter K. Allen,
Defendants-Appellees.

No. 86-5613.

United States Court of Appeals,
Sixth Circuit.

April 8, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.


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1

Before WELLFORD and NELSON, Circuit Judges; and COHN, District Judge.*

O R D E R

2

This matter is before the Court on appeal from the dismissal of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2241. This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.

3

In his petition, the pro se appellant claimed that he was denied his constitutional rights in a custody proceeding in the Juvenile Court of Shelby County, Tennessee. The United States District Court for the Western District of Tennessee found that it lacked in personam jurisdiction over two of the defendants and that the appellant had failed to allege that the remaining defendant had custody of his children. Thus, the court concluded that the petition could not succeed on the merits, and that it was, therefore, frivolous under 28 U.S.C. Sec. 1915(d).

4

The district court's dismissal of the petition was correct. In addition to the grounds stated by that court, it must be noted that none of the defendants are federal officials; therefore Sec. 2241 is inapplicable to this case. The facially applicable statute is 28 U.S.C. Sec. 2254. See 28 U.S.C. Secs. 2241 & 2254. However, in any case, the petition must still fail because federal courts lack jurisdiction to hear habeas corpus claims collaterally attacking state court judgments in child custody matters. Lehman V. Lycoming County Children's Services, 458 U.S. 502, 516 (1982). Therefore, the district court's judgment of dismissal is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation